The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STESHAWN BRISCO, )
)
Plaintiff, )
)
vs. )
) Case No. 3:20-cv-00366-GCS
JACQUELINE LASHBROOK, )
ANGELA CRAIN, LISA GOLDMAN, )
JACOB WEATHERFORD, WEXFORD )
HEALTH SOURCES, INC., DUSTIN )
CHITTY, BRETT TOWLE, )
MOHAMMED SIDDIQUI, and JOHN )
BALDWIN, )
)
Defendants. )
MEMORANDUM & ORDER
SISON, Magistrate Judge:
Plaintiff Steshawn Brisco, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”) and currently incarcerated at Cook County Department of
Corrections, brought suit against Defendants for allegations stemming from actions
against Plaintiff while he was incarcerated at Menard Correctional Center (“Menard”).
(Doc. 1). Plaintiff brings five counts against defendants for deliberate indifference to his
serious medical needs in violation of the Eighth Amendment. (Doc. 17, p. 5). In the first
count, Plaintiff alleges that Defendant Chitty left a staple in Plaintiff’s cell, encouraging
Plaintiff to kill himself. Id. In the second count, Plaintiff states that Defendant Chitty
knowingly left Plaintiff in an unsanitary cell contaminated with human waste and blood.
Id. at p. 6. In the third count, Plaintiff claims that Defendants Towle, Crain, Weatherford
and Siddiqui were deliberately indifferent to his need for medical care after a self-
inflicted arm injury. Id. In the fourth count, Plaintiff asserts that Defendant Wexford
Health Sources, Inc. (“Wexford”) and Defendants Lashbrook, Crain, Goldman, and
Baldwin maintained a practice and policy of understaffing medical and mental health
providers. Id. Finally, in the fifth count, Plaintiff states that Defendants Lashbrook, Crain,
Goldman, Baldwin, and Wexford maintained a policy and practice of failing to
adequately train correctional officers and medical and mental health providers on
addressing the needs of inmates who are seriously mentally ill (“SMI”). Id.
Now before the Court are the motions for summary judgment on the issue of
exhaustion of remedy of both Defendants Siddiqui, Weatherford, and Wexford (the
“Wexford Defendants”) and Defendants Baldwin, Chitty, Crain, Goldman, Lashbrook,
and Towle (the “IDOC Defendants”). (Doc. 41, 45). For the reasons delineated below, the
motions for summary judgment are GRANTED.
FACTUAL BACKGROUND
Plaintiff alleges that while he was on suicide watch at Menard on May 3, 2018,
Defendant Chitty observed Plaintiff was locked in a cell contaminated with human feces
and blood. (Doc. 42, p. 1). Instead of assisting Plaintiff, Defendant Chitty placed a part of
a staple in his cell and told Plaintiff that he could use it to kill himself. Id. Plaintiff further
claims that when Defendant Towle saw Plaintiff cutting himself, he refused to get
Plaintiff medical treatment. Id. at p. 2. Plaintiff then submitted sick call requests to
Defendants Lashbrook, Goldman, and Crain for treatment of his staple wound; however,
the defendants did not provide medical care because they are not properly trained to care
for SMI inmates. Id.
On May 9, 2018, Plaintiff filed a grievance claiming that prison officers left a small
staple for him to cut himself with after he informed a mental health medical provider that
he was suicidal (the “May 9th grievance”). (Doc. 42, Exh. A, p. 29). Plaintiff also explained
that he attempted to see nurses after he cut his arm, but the nurses told him that he could
go back to his cell without being seen. Id. The Administrative Review Board (“ARB”)
received a copy of Plaintiff’s initial grievance on May 30, 2019. Id. at p. 28. This copy
indicated that the grievance was deemed non-emergent; however, it did not include a
counselor’s response. Id. The ARB denied the May 9th grievance as misdirected because
Plaintiff was required to first have his current facility review the grievance. Id. at p. 27.
Plaintiff also mailed the ARB a letter, dated May 27, 2019 (the “May 29th letter”),
in which he claims that he sent the May 9th grievance to his grievance officer, but never
received a response. (Doc. 42, Exh. A, p. 30-31). Plaintiff further alleges that he filed
grievances on June 1, 2018 (the “June 1st grievance”) and July 2, 2018 (the “July 2nd
grievance”), and that his grievance officer failed to respond to these grievances. Id. The
ARB requested that Plaintiff submit a copy of the original grievances, but there is no
evidence that Plaintiff did so. Id. at p. 27.
On June 11, 2019, Plaintiff submitted a grievance stating that he filed his May 9th,
June 1st, and July 2nd grievances, but never received responses from his counselor (the
“June 11th grievance”). (Doc. 42, Exh. A, p. 23-26). On August 16, 2019, Plaintiff’s
counselor responded that there was no record of grievances being received in May or
June. Id. at p. 23. The Grievance Officer noted that Plaintiff’s May 9th grievance was
received, but it was denied as non-emergent. Id. The Grievance Officer further found that
Plaintiff’s records indicated he received a copy of this decision on May 21, 2018. Id.
Plaintiff’s grievance logs do not contain evidence of an appealed or re-filed May 9th
grievance, or of the June 1st and July 2nd grievances. Id. at p. 1.
Plaintiff also filed a grievance stating that he did not receive medical care after his
suicide attempt on September 29, 2019 (the “September 29th grievance”). (Doc. 42, Exh.
A, p. 24-25). In this grievance, Plaintiff not only describes his inadequate care, but also
references his May 9th emergency grievance. Id. However, Plaintiff’s counselor denied
this grievance as out-of-time on October 3, 2019. Id. at p. 24. Plaintiff appealed this
decision to the ARB, but the ARB denied the grievance as untimely.
In response to Defendants’ motions for summary judgment, Plaintiff included two
affidavits from alleged witnesses, Mr. Kevin Watson and Mr. Derrick Thompson. (Doc.
52, p. 30-32, 44-46). The documents contain handwriting similar to both that of each other,
and that of Plaintiff. Id. Neither document is notarized. Id. Defendants point out that
Plaintiff has previously attempted to avoid liability by denying authorship of
handwritten documents. In the exhibits to their motion for summary judgment, the IDOC
Defendants include a note from an investigation by Menard incident officers into
suspected gang activity at the prison. (Doc. 45, Exh. A, p. 19). In the note, the incident
officer states that he discovered two letters, one of which was found to be a regular
communication between inmates, while the other was found to be a security threat, as it
detailed directions from a potential gang leader with directions to other inmates. Id. at p.
20. Though Plaintiff had admitted to writing the former, but denied writing the latter, a
handwriting analysis revealed that the same person authored both letters. Id.
During the March 25, 2022 continuation of the hearing on Defendants’ motions,
Mr. Thompson testified on Plaintiff’s behalf. According to Mr. Thompson, Plaintiff filed
grievances in June, but did not receive a response. However, under questioning, Mr.
Thompson admitted that he did not know the content of these grievances, or whether
Plaintiff received a response. Furthermore, Mr. Thompson testified that sometimes
Plaintiff helped him write grievances, and he both testified that Plaintiff did and did not
help him write his affidavit. He also stated that he got an affidavit notarized for Plaintiff
when the law library visited them in their cell during lockdown, but that he could not get
a second affidavit notarized because the prisoners could not go to the law library during
lockdown.
During the initial hearing on Defendants’ motions, the IDOC Defendants called
Plaintiff’s counselor, Jennifer Cowan, Grievance Officer Kelly Pierce, and ARB member
Lisa Weitekamp to testify as to the grievance process. Ms. Cowan testified that grievances
were not lost at Menard and that grievance officials could not access the lockboxes used
for the collection of grievances without a key. Though Plaintiff claimed that Ms. Cowan
would destroy his grievances, Ms. Cowan stated that she would never do something like
that because doing so would threaten her job. Ms. Pierce confirmed Ms. Cowan’s
testimony that only Grievance Officers could open the lockbox used to collect grievances
and that grievances were not destroyed. She also stated that Plaintiff’s cumulative
counseling summary did not indicate that Menard failed to respond to his grievances.
Ms. Weitekamp testified that the ARB did not lose grievances and responded to those
grievances that they did receive.
LEGAL STANDARDS
Summary judgment is proper when a moving party demonstrates that the record
cannot establish the presence of a genuine dispute of material fact. See FED. R. CIV. PROC.
56(a). In order to survive a motion for summary judgment, the non-moving party must
provide admissible evidence from which a reasonable jury could find in favor of the non-
moving party. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). Traditionally,
the Court’s role in determining a motion for summary judgment is not to evaluate the
weight of the evidence, judge witness credibility, or determine the truth of the matter,
but is instead to determine whether there is a genuine issue of material fact. See Nat’l
Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). However, in
Pavey v. Conley, the Seventh Circuit held that a judge, rather than a jury, should determine
whether factual issues relating to the defense of the failure to exhaust administrative
remedies exist. 544 F.3d 739, 741 (7th Cir. 2008). If the Court determines that a prisoner
did not exhaust his administrative remedies, the Court may select one of the three
following outcomes: (a) if the plaintiff still has time to do so, the plaintiff must go back
and exhaust his administrative remedies; (b) if the plaintiff’s failure to exhaust was
innocent, as where prison officials prevent a prisoner from exhausting his remedies, the
plaintiff must be given another chance to exhaust; or (c) if the failure to exhaust was the
prisoner’s fault, the case is over. Id. at 742.
The Prisoner Litigation Reform Act (“PLRA”) governs lawsuits filed by inmates
and states that “no action shall be brought with respect to prison conditions under § 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”42
U.S.C. § 1997e(a). In order to satisfy the PLRA’s exhaustion requirement, prisoners must
strictly adhere to the grievance process. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006). Prisoners must exhaust their remedies before filing suit. See Ford v. Johnson, 362
F.3d 395, 398 (7th Cir. 2004). A plaintiff cannot file suit and then exhaust administrative
remedies while that suit is pending. Id. Consequently, if a prisoner fails to use a prison’s
grievance process properly, “the prison administrative authority can refuse to hear the
case, and the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809.
Prisoners must follow a prison’s administrative rules when exhausting their
remedies. See Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002). As an inmate
confined within the IDOC, Plaintiff is required to follow the regulations contained in the
IDOC’s Grievance Procedures for Offenders (“grievance procedures”) in order to
properly exhaust his claims. See 20 ILL. ADMIN. CODE § 504.800, et seq. The grievance
procedures require prisoners to submit a grievance to a counselor within sixty days of
discovering the underlying incident. See 20 ILL. ADMIN. CODE § 504.800. The grievance
must state the “factual details regarding each aspect of the offender’s complaint including
what happened, when, the name of any individual involved, and where the incident
occurred.” 20 ILL. ADMIN. CODE § 504.810(a). If a prisoner is not satisfied with the
counselor’s response, then that prisoner can submit a formal grievance to the prison’s
grievance officer. Id. at (a)-(b). The officer must then review the grievance and provide a
written response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a). Within two months
of receipt of the grievance, when reasonably feasible under the circumstances, the
grievance officer must report findings and recommendations in writing to the Chief
Administrative Officer (“CAO”). See 20 ILL. ADMIN. CODE § 504.830(e). If the prisoner is
still not satisfied with the CAO’s decision, the prisoner can formally appeal to the Director
through the ARB within thirty days of the CAO’s decision. See 20 ILL. ADMIN. CODE
§ 504.850(a). The inmate must attach copies of the grievance officer’s report and the
CAO’s decision to the appeal. Id. The ARB then submits its recommendation to the
Director, who is then responsible for issuing the IDOC’s final decision. See 20 ILL. ADMIN.
CODE § 504.850(f).
The grievance process also permits an inmate to file an emergency grievance
directly to the CAO. See 20 ILL. ADMIN. CODE § 504.840(a). The CAO may determine if
there is a substantial risk of imminent personal injury or other serious harm to the
offender. Id. If the CAO determines that the grievance is a non-emergency, the prisoner
is notified in writing that the prisoner may resubmit the grievance as a non-emergency
and move forward with the standard grievance process. See 20 ILL. ADMIN. CODE
§ 504.840(c).
The statutory purpose of the PLRA is to “afford corrections officials [the] time and
opportunity to address complaints internally before allowing the initiation of a federal
case.” Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Begolli v. Home Depot U.S.A., Inc., 701
F.3d 1158, 1161 (7th Cir. 2012). This allows the prison administration an opportunity to
fix the problem or to reduce damages and to shed light on factual disputes that may arise
in litigation. See Pozo, 286 F.3d at 1023-24. To allow otherwise would frustrate the purpose
of the grievance process. See Porter v. Nussle, 534 U.S. 516, 526 (2002). Accordingly, a
prisoner cannot satisfy the exhaustion requirement by filing an untimely or otherwise
procedurally defective grievance. See Woodford, 548 U.S. at 83. Unless a prisoner
completes the administrative review process by following the rules established for that
process, exhaustion has not occurred. See Pozo, 286 F.3d at 1023.
ANALYSIS
Plaintiff asserts that Menard’s grievance process is “flawed,” with counselors and
grievance officials regularly losing or allegedly destroying inmates’ grievances. (Doc. 53,
p. 4). During the hearing on Defendants’ motions, Plaintiff relied on the May 9th
grievance, which he alleges was either lost or destroyed when he attempted to refile the
grievance as a non-emergency. He points to his alleged June 1st and July 2nd grievances
as evidence that his grievances were regularly lost, and he relies on his grievances from
2019 to indicate that he complained about lost grievances. He also relies on testimony
from Mr. Thompson stating that he saw Plaintiff file grievances and he also saw other
inmates have their grievances lost or destroyed when they submitted them to their
counselor. Ms. Cowan directly contradicts that testimony, as she was the counselor who
collected grievances on Plaintiff’s and Mr. Thompson’s cellblock.
There are three circumstances in which an administrative remedy is not capable of
use to obtain relief, and is therefore unavailable: (i) when the remedy operates as “a
simple dead end,” in which officers are unable or unwilling to provide relief; (ii) when,
though mechanisms exist through which inmates can technically obtain relief, the
mechanisms are so opaque no ordinary inmate can navigate them; or (iii) when prison
administrators thwart a prisoner’s attempt to take advantage of available remedies
through “machination, misrepresentation or intimidation.” Ross v. Blake, 136 S. Ct. 1850,
1859-60 (2016); see also Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2008); Pavey, 544 F.3d
at 742; Dole 438 F.3d at 808. When a plaintiff properly follows the procedure for
exhausting administrative remedies, but prison officials mishandle the grievance, the
remedy is rendered unavailable. See Dole, 438 F.3d at 811. For example, if a prison
appellate body rejected an appeal on the basis of a grievance officer’s misidentification of
the prisoner’s prison number, a plaintiff could argue that this mistake rendered his
attempts to exhaust his administrative remedies thwarted. See Ross v. Bock, No. 16-C-8672,
2017 WL 6758394, at *3 (N.D. Ill. Nov. 29, 2017).
If grievance personnel do not respond to a prisoner’s grievance, that prisoner’s
administrative remedies are also rendered unavailable. See Dole, 483 F.3d at 809.
However, in order for a prisoner’s remedies to be unavailable due to lack of a response,
a prisoner must have no indication that officials are pursuing his case. See Reid v. Balota,
962 F.3d 325, 331 (7th Cir. 2020). For example, when prison officials state that they will
inform a prisoner of the status of his or her grievance within sixty days, “whenever
possible,” a period of silence exceeding six months nevertheless does not render remedies
unavailable because officials may still be investigating a complicated case. Ford, 362 F.3d
at 400. In contrast, in Reid, the Seventh Circuit Court of Appeals found that a two-month
period of silence rendered administrative remedies unavailable only because the prisoner
had no other reason to believe that anyone was “looking into” his grievance. 962 F.3d at
331.
In contrast, here, Plaintiff failed to take reasonable steps after an allegedly long
period of silence in order to inquire into his grievance. As an initial matter, the Court does
not find Mr. Thompson’s testimony that Menard destroyed and lost Plaintiff’s grievances
credible. Mr. Thompson was internally inconsistent about whether he saw Plaintiff file
grievances, whether he saw the content of those grievances, and whether he saw
grievances returned to other inmates. He was also internally inconsistent about whether
he authored his affidavit, and whether he was able to get that affidavit notarized. The
Court finds that Mr. Thompson’s testimony is unreliable. Accordingly, it turns to the
evidence in the record to determine whether Plaintiff’s claim that his grievances were lost
is credible.
There is little reliable evidence in the record indicating that Plaintiff attempted to
exhaust his May 9th grievance. Although Plaintiff submitted letters to the ARB and
additional grievances to prison officials complaining about his lost grievances, he did so
in 2019, a full year after officials allegedly lost or destroyed the grievance. Plaintiff
provided no explanation as to why he inquired into his missing grievances so late. The
conclusion the Court draws from this lack of action is that Plaintiff had indication that
the prison considered his grievance to be resolved when it deemed the May 9th grievance
non-emergent but chose not to pursue the matter further until he was preparing for his
lawsuit, which he filed in April, 2020. Therefore, in contrast to Reid, in which the plaintiff
had no response from prison officials indicating that his grievances were received,
Plaintiff's allegations that his remedies were unavailable to him are not supported by any
evidence in the record. Accordingly, the Court finds that Plaintiff's administrative
remedies remained unexhausted, and summary judgment is proper in this case.
CONCLUSION
For the above stated reasons, Defendants’ motions for summary judgment for
failure to exhaust administrative remedies (Doc. 41, 44) are GRANTED. The Court
directs the Clerk of the Court to dismiss this case without prejudice.
IT IS SO ORDERED. Digitally signed
DATED: March 31, 2022. Alka eb. [Raa Toe son?
10:17:32 -05'00'
GILBERTC.SISON
United States Magistrate Judge
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